Many readers will have prior knowledge of some of the information within this post. I have divided it into sections to allow people to skip parts with which they are already familiar.

This post will cover LiveWell’s application status as well as the County’s decision on January 19th to adopt a 1,125 foot separation requirement between Family Care Homes.

What is a Family Care Home?

To understand what Livewell is applying to do, it will help to review the basics. A Family Care Home is a state licensed facility with six beds or less that provides housing and other services for people with any type of disability as defined by the Americans with Disabilities Act (ADA). That includes, among others, the elderly, those with alcohol dependency, those with drug dependencies and the mentally ill.

According to state law, any Family Care Home has the right to locate in any area zoned “Residential”. Quoting directly from the statute, the purpose of the Family Care Home is to “provide persons with disabilities the opportunity to live in a normal residential environment”.

If this type of a licensed facility has seven or more beds (even up to several hundred), it is classified as an Adult Care Home and must locate in areas zoned commercial.  Only the smaller Family Care Homes have the right to locate within residential neighborhoods.

LiveWell bought the two cottages with the intent of establishing a separate Family Care Home in each one.

What is a “Separation Requirement”?

The same law which allows Family Care Homes to locate in any residentially zoned area also gives governing authorities the ability to prevent clustering of such facilities. “Clustering” means locating two or more such facilities close together such that you effectively create a large operation. To prevent this from happening, the language in the statute allows cities and counties to, at their option, “prohibit a family care home from being located within a one-half mile radius of an existing family care home”.

Enacting a separation requirement is the only way to prevent clustering; which arguably could harm the residential character of the neighborhood. That, in turn, could defeat the purpose of a Family Care Home; which is to be part of a “normal residential environment”. However, it is an option which must be exercised by the governing authority (city or county), and it has been interpreted as being “up to” one half mile.

Many nearby cities and counties have adopted such a requirement. Most are at one half mile, but a few have opted for shorter distances. And cities are able to act independently of counties. For example, Pittsboro has adopted a one half mile separation requirement that affects residential areas only within the city limits.

However, Chatham County had not adopted one; which is why our POA requested that it adopt a half mile separation requirement. That process was initiated last August. I’ll come back to this further down…..

Status of LiveWell’s Applications      (Trust me….you will want to read this section.)

LiveWell submitted license applications for Family Care Homes in both cottages in early November 2015. As far as we know, these are currently in process, and I have no idea how long it will take for licenses to be issued.

But here is the interesting twist. Livewell submitted three applications for three Family Care Homes even though it owned only two cottages. Why three?? They submitted two Family Care Home applications for the one cottage at 11476 Club Drive; one for the upper floor and one for the lower floor. That would have allowed up to12 beds within one house; and the limit for a Family Care Home is six beds or less.

In early December, the state licensing authority (DHSR) informed Livewell that this would not work. They voided one of those two applications and authorized only one application for six beds in that cottage.

Yes, LiveWell tried to skirt the law.  No, they did not get away with it. However, it is this third application, which has since been voided, which has caused confusion.

The County Planning Department knew of the three applications when they were originally submitted.  However, the Planning Director did not know that the third application had, quite justifiably, been voided by the state.   Therefore, at the January 19th meeting, he still thought there were three applications for three homes; which is why he kept referring to three homes in comments he made during the meeting.

He was mistaken and is now aware of the change. LiveWell is currently applying for two Family Care Homes; one in each cottage. Any prior reference to three was simply a mistake.

Result of Request for a Separation Requirement

At the County Board Meeting on January 19th, the Commissioners voted to adopt a separation requirement of 1,125 feet between Family Care Homes within Chatham County.  That was the end result. What follows is a very brief summary of how it got done.

The Commissioners considered the original request for a one half mile separation agreement in August 2105 and sent it to the County Planning Board for its consideration and recommendations. After discussing the proposal in October and November, the Planning Board voted 7-3 to recommend a separation requirement of 1,125 feet; which is slightly under one quarter of a mile.

Until the meeting on January 19th, I was not entirely sure of the logic behind that shorter distance. However, during that meeting, one of the County Commissioners indicated that this distance had been adopted by at least one and possibly two other entities; and that it had successfully withstood legal challenges. Therefore, the logic was that adopting a similar distance might result in less chance of somebody taking legal action against the County.

Also, please understand that several members of the Planning Board wanted no separation requirement at all. So perhaps the shorter distance was something of a compromise.

For those who might be interested, throughout this process and even at the Commissioner’s meeting, the County Planning Department recommended against adopting this separation requirement. Reasons were given, but, quite frankly, I comprehended only one; that being that nothing needed to be done because there was no existing problem. Personally, I did not accept that logic.

In the end, the Board of Commissioners voted 5-0 to accept the recommendation of the Planning Board and agreed to 1,125 feet.

An item worth noting.  With the help of a few residents, Joe Glasson directed the lobbying efforts for adopting this requirement. Those efforts, and especially the time and effort he personally expended in meeting with elected officials, were reflected in the final vote.  And many thanks to those of you who attended the County Board meeting to support adoption of this proposal.  It helped a great deal.

One other item. Commissioners in Chatham County are elected on a district basis. There are five districts, and each elects only one commissioner. We are in District # 1, and our commissioner is Karen Howard. At the meeting, it was clear that she supported this proposal, and she was the commissioner who made the motion to have it adopted.

What Does This Mean?

I need to preface these comments by reminding everybody that I am not a lawyer. Therefore, what follows are lay interpretations and opinions.

LiveWell has applications in process for two Family Care Homes on Club Drive. If one or both are obtained, neither LiveWell nor any other operator will be able to obtain a license for another Family Care Home on Club Drive. Therefore, LiveWell is now effectively prevented from expanding its operation in that immediate area.

Any operator is still able to obtain a license for a Family Care Home elsewhere within the community. That possibility always existed, even prior to the LiveWell issue arising. However, with the passage of this separation requirement, that home now cannot be within a 1,125 foot radius of any other Family Care Home.

Now, to the conundrum that seems to be on everyone’s mind……how does this new regulation affect the two proposed Family Care Homes on Club Drive; since they are closer than the new 1,125 foot limit would allow.

This is a tough one. Once again, please understand that I can only offer my totally unofficial perspective.

It appears to me the County is taking the position that these two proposed homes are grandfathered. In other words, because the applications were submitted prior to the County adopting the requirement, these homes will not be subject to the new regulation.

Since the County Planning Department has always been against the idea of a separation requirement, it seems pretty clear that they are very comfortable taking that stance. But I sensed that a number of the Commissioners felt this way, too.

I also got the impression that the state licensing agency (DHSR) does not get involved in the question of whether a proposed location complies with all laws and regulations. Rather, it appears that DHSR accepts the determination of the county or city and proceeds on that basis.  In October,  the County Planning Department provided written confirmation to DHSR that each location complied with all regulations.  At that time, they both did; and it appears to me that the County is not inclined to go back to DHSR and change that determination.

Should this “grandfathering” position be legally challenged? Honestly, I do not know. I can see both sides. Once a license application has been submitted, I can see someone saying that it would be unfair to retroactively apply a newly passed regulation. On the other hand, a strict reading of the new regulation refers to “licensed” facilities, and neither was officially licensed at the time the regulation went into effect.

My guess??  I suspect that the POA Board will take legal advice on this question and then decide whether anything could or should be done. We all know that anybody can sue anybody else for anything. But I am sure everybody also understands that it usually comes down to assessing the chances of winning, estimating both the financial and practical costs and then deciding the best course of action. I would not be surprised if that happens here.